# C_2018455EN.01002201.xml

| 17.12.2018 | EN | Official Journal of the European Union | C 455/22 |
| --- | --- | --- | --- |

17.12.2018

EN

Official Journal of the European Union

C 455/22

---

Request for a preliminary ruling from the Juzgado de Primera Instancia n.o 3 bis de Albacete (Spain) lodged on 2 October 2018 — The borrowers v Globalcaja, S.A.

(Case C-617/18)

(2018/C 455/32)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia n.o 3 bis de Albacete

Parties to the main proceedings

Applicants: The borrowers

Defendant: Globalcaja, S.A.

Questions referred

| 1. | Does the effect of ‘shall... not be binding’ in Article 6(1) of Directive 93/13 (1) mean that a trader and a consumer, by means of a private agreement, cannot modify, by moderating it, a term that does not meet the requirement under Article 4(2) that it must be drafted in plain intelligible language, whether by reducing the amount under that term or by replacing it with a different term that is less detrimental to the consumer?
  Would the answer to that question be different if the modification at issue were contained in an agreement concluded between the consumer and the trader that is intended precisely to settle a dispute relating to the possible lack of transparency of a term not individually negotiated contained in an earlier agreement between those parties, without resorting to the courts? |
| --- | --- |

1.

Does the effect of ‘shall... not be binding’ in Article 6(1) of Directive 93/13 (1) mean that a trader and a consumer, by means of a private agreement, cannot modify, by moderating it, a term that does not meet the requirement under Article 4(2) that it must be drafted in plain intelligible language, whether by reducing the amount under that term or by replacing it with a different term that is less detrimental to the consumer?

Would the answer to that question be different if the modification at issue were contained in an agreement concluded between the consumer and the trader that is intended precisely to settle a dispute relating to the possible lack of transparency of a term not individually negotiated contained in an earlier agreement between those parties, without resorting to the courts?

| 2. | Must Article 4(2) of Directive 93/13 be interpreted as meaning that the concepts ‘the main subject matter of the contract’ and ‘adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other’ encompass two terms contained in an agreement not individually negotiated between a trader and a consumer, whereby, in the first place, a modification is made to a clause contained in an earlier agreement between those parties — replacing it with a different term that is less detrimental to the consumer — and whereby, in the second place, the consumer waives his right to make a claim through judicial or extrajudicial channels relating to the possible lack of transparency of that term and the effects inherent in that lack of transparency? |
| --- | --- |

2.

Must Article 4(2) of Directive 93/13 be interpreted as meaning that the concepts ‘the main subject matter of the contract’ and ‘adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other’ encompass two terms contained in an agreement not individually negotiated between a trader and a consumer, whereby, in the first place, a modification is made to a clause contained in an earlier agreement between those parties — replacing it with a different term that is less detrimental to the consumer — and whereby, in the second place, the consumer waives his right to make a claim through judicial or extrajudicial channels relating to the possible lack of transparency of that term and the effects inherent in that lack of transparency?

| 3. | If the answer to the previous question is in the affirmative, must Article 4 of Directive 93/13 be interpreted as meaning that ‘the nature of the goods or services for which the contract was concluded’ and ‘all the circumstances attending the conclusion of the contract [at the time of conclusion of the contract]’ can be taken into account only for the purpose of assessing the fairness of terms that do not relate to the definition of the main subject matter of the contract? Or, on the contrary, can those criteria be taken into account for the purpose of assessing the transparency of terms relating to the main subject matter of the contract, to which Article 4(2) refers? |
| --- | --- |

3.

If the answer to the previous question is in the affirmative, must Article 4 of Directive 93/13 be interpreted as meaning that ‘the nature of the goods or services for which the contract was concluded’ and ‘all the circumstances attending the conclusion of the contract [at the time of conclusion of the contract]’ can be taken into account only for the purpose of assessing the fairness of terms that do not relate to the definition of the main subject matter of the contract? Or, on the contrary, can those criteria be taken into account for the purpose of assessing the transparency of terms relating to the main subject matter of the contract, to which Article 4(2) refers?

| 4. | If the answer to the second question is in the affirmative, is national case-law compatible with Article 4(2) of the Directive — specifically with the requirements arising under that article that terms must be drafted in plain intelligible language and must be transparent — where that case-law establishes, in respect of an agreement not individually negotiated between a trader and a consumer whereby the application of a term contained in an earlier agreement between those parties is modified, that the trader is not required to inform the consumer that the term in question may lack transparency, on the ground that the factors giving rise to that lack of transparency are well known? |
| --- | --- |

4.

If the answer to the second question is in the affirmative, is national case-law compatible with Article 4(2) of the Directive — specifically with the requirements arising under that article that terms must be drafted in plain intelligible language and must be transparent — where that case-law establishes, in respect of an agreement not individually negotiated between a trader and a consumer whereby the application of a term contained in an earlier agreement between those parties is modified, that the trader is not required to inform the consumer that the term in question may lack transparency, on the ground that the factors giving rise to that lack of transparency are well known?

| 5. | If the answer to the second question is in the affirmative, must Article 4(2) of the Directive be interpreted as meaning that a waiver by a consumer of the right to make claims relating to the possible lack of transparency of a term not negotiated individually, through judicial or extrajudicial channels, only meets the requirement of being ‘in plain intelligible language’ if the trader has previously informed the consumer of the specific rights he is waiving and, in particular, of the actual amount he is waiving the right to claim? |
| --- | --- |

5.

If the answer to the second question is in the affirmative, must Article 4(2) of the Directive be interpreted as meaning that a waiver by a consumer of the right to make claims relating to the possible lack of transparency of a term not negotiated individually, through judicial or extrajudicial channels, only meets the requirement of being ‘in plain intelligible language’ if the trader has previously informed the consumer of the specific rights he is waiving and, in particular, of the actual amount he is waiving the right to claim?

---

(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

---